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 Defendants’ recently submitted motion for summary judgment, filed on October 17, 1

2005, will not be adjudicated herein.

 Although plaintiff initially named T. Felker as the defendant, ascribing the prison 2

policies at issue to him, as he sues only for prospective injunctive relief, the court substituted in 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SANTIAGO SOTO, 

Plaintiff, No. CIV S-04-571 FCD GGH P

vs.

WARDEN D.L. RUNNELS, ORDER & 

Defendant. FINDINGS AND RECOMMENDATIONS

 /

Introduction

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. §

1983. Pending before the court are plaintiff’s motions for a preliminary injunction, filed on

March 17, 2005, and for a temporary restraining order, filed on April 28, 2005. Defendant’s

opposition to both was filed on June 6, 1005, an extension of time having been granted.1

Complaint

Plaintiff, who sues only for prospective injunctive relief, alleges that the

implementation of “Op. 1” on April 29, 2002, by the defendant warden resulted in two 2

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the name of the current Warden of High Desert State Prison. See Order filed on July 14, 2004,

fn. 1.

2

unconstitutional policies in violation of the Eighth and First Amendments: one, compelling High

Desert State Prison (HDSP) inmates, including plaintiff, to choose between outdoor exercise and

law library access; the other, limiting prisoners’ weekly outdoor exercise to from zero to three

hours per week. Form Complaint, p. 8;Attachment, pp. 3-6. 

TRO

 The purpose in issuing a temporary restraining order is to preserve the status quo

pending a fuller hearing. The cases contain limited discussion of the standards for issuing a

temporary restraining order due to the fact that very few such orders can be appealed prior to the

hearing on a preliminary injunction. It is apparent, however, that requests for temporary

restraining orders which are not ex parte and without notice are governed by the same general

standards that govern the issuance of a preliminary injunction. See New Motor Vehicle Bd. v.

Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977) (Rehnquist, J.); Los Angeles Unified Sch.

Dist. v. United States Dist. Court, 650 F.2d 1004, 1008 (9th Cir. 1981) (Ferguson, J. dissenting);

Century Time Ltd. v. Interchron Ltd., 729 F. Supp. 366, 368 (S.D.N.Y. 1990). In many cases the

emphasis of the court is directed to irreparable harm and the balance of hardships because the

merits of a controversy are often difficult to ascertain and adjudicate on short notice. 

Preliminary Injunction Standard

The legal principles applicable to a request for injunctive relief are well

established. To prevail, the moving party must show either a likelihood of success on the merits

and the possibility of irreparable injury, or that serious questions are raised and the balance of

hardships tips sharply in the movant’s favor. See Coalition for Economic Equity v. Wilson, 122

F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374,

1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal

point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. “Under

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any formulation of the test, plaintiff must demonstrate that there exists a significant threat of

irreparable injury.” Id. In the absence of a significant showing of possible irreparable harm, the

court need not reach the issue of likelihood of success on the merits. Id.

In cases brought by prisoners involving conditions of confinement, any

preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the

harm the court finds requires preliminary relief, and be the least intrusive means necessary to

correct the harm.” 18 U.S.C. § 3626(a)(2).

Motion for TRO and Preliminary Injunction 

In his motion for a preliminary injunction, plaintiff seeks an order which would

require defendant to allow plaintiff and all other prisoners at HDSP, Level IV, to have no less

than 10 hours a week of outdoor exercise. PI motion, pp. 1-2. Plaintiff alleges that he and other

general population HDSP prisoners are “provided on a regular program basis no more than 3 hrs

a week of outdoor exercise.” Id., p. 3. Plaintiff states that he and other HDSP inmates have been

denied access to outdoor exercise and law library since January 20, 2005. Id. The court notes

that this representation is in apparent conflict with plaintiff’s claim in the underlying complaint

that inmates have been denied such access since April 29, 2002. 

Plaintiff claims that he and other Level IV 180 degree custody inmates are being

deprived of a basic human physical and mental need with the deprivation of adequate physical

exercise. PI motion, pp. 3-6. Plaintiff alleges that the “great majority” of HDSP inmates have no

access to educational or vocational programs, jobs, rehabilitation, in-cell handicraft hobbies or

weight-lifting equipment. Id., pp. 3-4. Plaintiff claims that undue restrictions on prisoners’

opportunities for physical exercise constitute cruel and unusual punishment. Id., p. 4. Plaintiff

includes a declaration signed by himself and, appends to it a separate sheet, the apparent

signatures of 32 other inmates in support of his motion, wherein plaintiff also claims that D-yard

180 degree design inmates have no more than three hours a week of outdoor exercise and usually

none at all; that access to the law library for inmates with no court deadlines is denied during

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lockdowns; that inmates are ducated for the law library on their few outdoor exercise days,

forcing them to choose one or the other; and that locking up inmates 24 hours a day, seven days a

week will increase illness, stress and tension among most inmates. See 3/13/05 declaration.

In his motion for a temporary restraining order (TRO), plaintiff alleges that on

April 20, 2005, under the authority of defendant Runnels a known enemy of plaintiff’s was

moved from C-yard, to D-yard, where plaintiff is housed, in what to plaintiff appears to be 

retaliation for his having brought the instant civil rights complaint. TRO motion, pp. 1-2. 

Plaintiff attaches a Rules Violation Report (RVR), dated May 30, 2004, wherein plaintiff was

assessed a 90-day credit loss for a Division D offense, which also states that he and inmate

Verdugo “are to be considered enemies.” Plaintiff claims that defendant Runnels is aware of the

May 30, 2004 RVR and has placed his known enemy not only in the same yard, but in the same

building. TRO motion, p. 2. Plaintiff asks the court to order defendant to stop any future

retaliation against him. Id. 

Opposition

Defendant contends that both of the issues raised by plaintiff in seeking

immediate injunctive relief have been mooted. Opp., pp. 4-5. As to plaintiff’s yard privilege

concerns, defendant asserts, HDSP was put on lockdown status in January 2005 as a result of

information received of possible staff assaults being planned as well as various incidents that

occurred on Facilities B, C, and D which showed a pattern of assaulting and/or threatening staff. 

Opp., p. 2; Decl. of Dennis Gunter, HDSP Litigation Coordinator, ¶ 5. HDSP was locked down

in order to complete an investigation, searches and administrative review, but the entire

institution is no longer locked down. Id. Yard privileges were suspended as a security

precaution during lockdown. Id., Gunter Decl., ¶ 6. 

According to defendant, any inmate who was a preferred legal user (PLU) was

allowed law library access. A PLU is an inmate with a court deadline that is pending. Inmates

are granted PLU status by demonstrating that they have a pending court deadline and asking to

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be ducated to the law library. Inmates who have been ducated are on a list to be escorted to the

law library given by each facility’s librarian technical assistant to the program lieutenant daily. 

Opp., pp. 2-3, Gunter Decl., ¶ 7.

In early May 2005, HDSP began a process of incremental un-lock, meaning that 

that all yards come up incrementally. According to defendant’s declarant, the un-lock process

must occur in increments to preserve the safety and security of the institution. While HDSP is no

longer on institutional lockdown status, some yards are still on lockdown due to other incidents. 

Opp., p. 3, Gunter Decl., ¶ 8.

Declarant Gunter asserts that Facility D, building 2, section A, where plaintiff is

housed, has been unlocked since May 8, 2005. Therefore, according to defendant, plaintiff has

regained his yard privileges. Opp., p. 3, Gunter Decl., ¶ 9.

As to plaintiff’s enemy concerns, once plaintiff advised the litigation office that he

had been placed on the same yard as inmate Verdugo, a known enemy of plaintiff’s, Litigation

Coordinator Gunter avers that he took immediate action, confirming that plaintiff and Verdugo

were known enemies and contacting the Facility D Sergeant. Gunter asked the Facility D

sergeant to move Verdugo out of the building and off the yard immediately. Inmate Verdugo

was transferred out of the facility and into another facility on May 2, 2005. Opp., pp. 3-4, Gunter

Decl., ¶¶ 10-11, 14. 

Declarant Gunter also maintains that at no time was plaintiff in any danger from

Verdugo because, although he had been placed in the same facility and building on April 7, 2005,

a concrete wall separated plaintiff’s section from Verdugo’s and, as D-facility was on lockdown,

the two could not have met on the yard. Opp, p. 4, Gunter Decl., ¶¶ 12-13. Moreover, staff

error precipitated the temporary placement of Verdugo in plaintiff’s building, not any intent to

harm plaintiff. Opp, p. 4, Gunter Decl., ¶ 15. 

According to defendant, since plaintiff’s yard privileges have been re-instated and

his enemy concerns alleviated, his motions are moot. 

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Plaintiff’s Reply

As to his motion for a TRO, plaintiff concedes that what he apparently now finds

to have been a “staff error” in placing his known enemy, inmate Verdugo, in his housing unit was

corrected within 15 or 20 days of plaintiff’s filing of his motion by placement of the inmate back

into the yard from which he had been transferred. Support for PI motion, filed on 7/13/05, pp. 1-

2. Plaintiff withdraws his TRO request since the issue has been resolved. Id., p. 8. The court

finds the April 28, 2005 request to have been rendered moot and will allow plaintiff to withdraw

the TRO motion. 

However, as to defendant’s representation that plaintiff has not been on lockdown

since May 8, 2005, plaintiff maintains that while Mexicans and native Americans were unlocked

then, and whites were unlocked thereafter, on June, 2005, inmates classified as “Southerners,

Northerners, and African Americans” were still on lockdown as of June 23, 2005. Plaintiff’s

Decl., filed on 7/13/05, p. 2. Those groups still on lockdown, of which plaintiff presumably is

one, although that is not entirely clear, are denied movement outside their cells and access to

outdoor exercise; law library access unless they have a pending court deadline; access to the

prison commissary for “essential items” such as shampoo, toothpaste, toothbrushes, pen fillers,

writing paper, cleaning supplies, vitamins; are subject to frequent restriction to their cells for 24

hours a day, seven days a week; that inmates with “health issues” in their 40's and 50's

experience lockdowns from 10 to 100 days that contribute to the deterioration of their health. 

Plaintiff’s Decl., filed on 7/13/05, pp. 2-3. Plaintiff appends some 65 inmate signatures to his

declaration. Plaintiff ranges far afield from his initial motion wherein he explicitly sought only

an order for himself (and other HDSP inmates) to be allowed 10 hours a week of physical

exercise.

Plaintiff also sets forth in his own handwriting, with no supporting source

documentation, a “timetable” for outdoor exercise for those who have been unlocked, stating that

they get only zero to one and a half hours of exercise on a weekly basis. In the filing that

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“Disciplinary detention may be ordered as a continuous period of confinement or as 3

intermittent confinement on holidays, weekends or days off from assigned work and program

activities. When ordered as intermittent confinement, confinement shall not exceed 10 days

during a 35-day period. The chief disciplinary officer shall review the treatment of an inmate

confined in disciplinary detention and consider a modification of sentence when evidence

indicates the inmate is ready to conform to the rules.” 

 “Exercise. Inmates undergoing disciplinary detention will be permitted a minimum of 4

one hour per day, five days per week, of exercise outside their cells unless security and safety

considerations preclude such activity.”

7

accompanies his 7/13/05 declaration, he states, for example, that the inmates off of lockdown

since May 2005, received no yard on 5/30/05, 6/1/05, 6/03/05, 6/4/05, 6/5/05, 6/15/05, and

6/20/05 and less than two hours on 6/7/05, 6/10/05, 6/14/05, 6/20/05, 6/2/05, 6/23/05, 6/24/05. 

Support for PI motion, filed on 7/13/05, pp. 2-3. As noted, plaintiff does not submit the actual

timetable, nor does he state the source of his version of a timetable, nor does he even state

whether it explicitly applies to him. 

Plaintiff cites to CAL. CODE REGS. tit.xv, §§ 3330(c) and 3331(h), which he avers 3 4

defendant routinely “bypasse[s],” maintaining that the lack of outdoor exercise is an ongoing

policy at HDSP. Id., pp. 3-4. Plaintiff claims also that allowing only those inmates with pending

court deadlines to access the law library, inter alia, precludes inmates from filing legitimate

complaints and applications for writs of habeas corpus. Id., p. 7.

Discussion

Plaintiff mischaracterizes his complaint as a “class action,” although plaintiff

never filed any motion pursuant to Fed. R. Civ. P. 23. Support for PI motion, filed on 7/13/05, p.

4. Moreover, he is a non-lawyer proceeding without counsel. It is well established that a

layperson cannot ordinarily represent the interests of a class. See McShane v. United States, 366

F.2d 286 (9th Cir. 1966). This rule becomes almost absolute when, as here, the putative class

representative is incarcerated and proceeding pro se. Oxendine v. Williams, 509 F.2d 1405,

1407 (4th Cir. 1975). In direct terms, plaintiff cannot “fairly and adequately protect the interests

of the class,” as required by Rule 23(a)(4) of the Federal Rules of Civil Procedure. See Martin v.

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Middendorf, 420 F. Supp. 779 (D.D.C. 1976). Plaintiff’s privilege to appear in propria persona

is a “privilege ... personal to him. He has no authority to appear as an attorney for others than

himself.” McShane v. U. S., 366 F.2d 286, 288 (9 Cir.1966), citing Russell v.United States, th

308 F.2d 78, 79 (9th Cir. 1962); Collins v. O'Brien, 93 U.S.App.D.C. 152, 208 F.2d 44, 45

(1953), cert. denied, 347 U.S. 944, 74 S. Ct. 640 (1954). Therefore, plaintiff brings this action

only on his own behalf and plaintiff continues in this action only as an individual. Plaintiff,

because of his effort to speak on behalf of other inmates, does not make clear whether he,

himself, is being deprived of all outdoor exercise or is receiving only limited exercise. Support

for PI motion, filed on 7/13/05, pp. 2-3. On the other hand, to the extent plaintiff seeks to

implicate defendant for an unconstitutional policy, he fails to make the requisite showing that he

is subject to irreparable injury justifying preliminary injunctive relief such that the court should

order in the interim that inmates be allowed 10 hours of physical exercise a week, without any

consideration given to institutional safety or security concerns, which concerns plaintiff

dismisses as basically pretextual. 

An Eighth Amendment claim that a prison official has deprived an inmate of

humane conditions of confinement must meet two requirements, one objective and one

subjective. Allen v. Sakai, 40 F.3d 1001 (9 Cir. 1994), as amended on denial of rehearing, 48 th

F.3d 1082, 1083 (9 Cir. 1994), citing Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 1977 th

(1994). “Under the objective requirement, the prison official’s acts or omissions must deprive an

inmate of ‘“ the minimal civilized measure’s of life’s necessities.”’” Id., quoting Rhodes v.

Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399-2400 (1981). “The subjective requirement,

relating to the defendant’s state of mind, requires deliberate indifference.” Id., citing Farmer, 511

U.S. at 836, 114 S. Ct. at 1979. 

The deprivation of outdoor exercise can constitute cruel and unusual punishment. 

Spain v Procunier, 600 F.2d 189 (9 Cir. 1979). “[S]ome form of regular outdoor exercise is th

extremely important to the psychological and physical well being of the inmates.” Id., at 199. 

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The long term deprivation of exercise is a denial of a basic need in violation of the Eighth

Amendment. Allen v. Sakai, 48 F.3d 1082, 1088 (9 Cir. 1994). th

In Spain v. Procunier, 600 F.2d 189 (9 Cir. 1979), the Ninth Circuit found that th

regular outdoor exercise is necessary “unless inclement weather, unusual circumstances, or

disciplinary needs made that impossible.” 600 F.2d at 199. 

Plaintiff makes an insufficient showing that he is currently subject to irreparable

harm and is deprived on an on-going basis of outdoor physical exercise in his motion. He does

not even make clear whether he is personally denied all access to outdoor physical exercise or is

subjected to limitations on outdoor exercise. The signatures of a number of inmates, none of

whose names even appear on the same pages as the claims plaintiff sets forth, does not even

adequately demonstrate that the inmates support his contentions. Plaintiff’s representation of a

“timetable,” without providing its source or the actual documentation on which it appears is also

inadequate.

On the other hand, defendants do not clarify precisely what type and duration of

exercise to which plaintiff is now entitled—simply that he has regained “yard privileges.” 

Defendants appear to assume that they may place inmates on lockdown status for months at a

time, with no exercise opportunities available, and that such a decision is therefore automatically

immune from Eighth Amendment review. While emergency situations may require that inmates

receive no “yard” during the course of the emergency, defendants cannot make lockdown status

the rule and the not the emergent exception.

Further discovery is warranted before the court makes a decision on what is a

sparse, ambiguous record. The court is unwilling to recommend an injunction on the general,

unclear allegations of plaintiff, which would have an enormous effect on the running of a

probably overcrowded prison. However, defendants should understand that the problems

associated in running a prison do not give them carte blanche immunity from Eighth Amendment

review to do whatever they wish, whenever they wish. 

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As to plaintiff’s generic claims that he and others are deprived of adequate law

library access when, during lockdown, they are only granted access if they can show a pending

court deadline, again plaintiff makes no showing in his motion that he is currently impeded in

pursuing a viable claim. In support of his allegation that he is being denied access to the courts,

plaintiff must show that he has sustained an actual injury; i.e., he must “demonstrate that a

nonfrivolous legal claim had been frustrated or was being impeded.” Lewis v. Casey, 518 U.S.

343, 353, 362, 116 S. Ct. 2174, 2180-81 (1996). The Supreme Court in Bounds v. Smith, 430

U.S. 817, 97 S.Ct. 1491 (1977) did not create an “abstract, freestanding right to a law library or

legal assistance.” Lewis v. Casey, 518 U.S. at 350-51, 116 S. Ct. 2174.

Speculative injury does not constitute irreparable harm. See Caribbean Marine

Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988); Goldie’s Bookstore, Inc. v. Superior

Court, 739 F.2d 466, 472 (9th Cir. 1984). A presently existing actual threat must be shown,

although the injury need not be certain to occur. See Zenith Radio Corp. v. Hazeltine Research,

Inc., 395 U.S. 100, 130-31, 89 S. Ct. 1562 (1969); FDIC v. Garner, 125 F.3d 1272, 1279-80 (9th

Cir. 1997), cert. denied, 523 U.S. 1020 (1998); Caribbean Marine Servs. Co., 844 F.2d at 674. 

Because of plaintiff’s failure to sufficiently demonstrate that he is subject to

irreparable harm absent this court issuing a preliminary injunction, this court will recommend

denial of his motion.

 Accordingly, IT IS ORDERED that plaintiff’s July 13, 2005 withdrawal of his

motion for a temporary restraining order, filed on April 28, 2005, moots the TRO motion, which

is hereby dismissed.

IT IS HEREBY RECOMMENDED that plaintiff’s motion for preliminary

injunction, filed on March 17, 2005, be denied.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 1/4/06 /s/ Gregory G. Hollows

 

 GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

GGH:009

soto0571.pi

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